Wright v. Commonwealth

• Decision Date: 17 June 1909
• Citation: 109 Va. 847,65 S.E. 19
• Parties: WRIGHT. v. COMMONWEALTH.
• Court: Virginia Supreme Court

65 S.E. 19

109 Va. 847

WRIGHT.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 17, 1909.

1. Statutes (§ 241^*)—Construction—Penal Statutes.

Penal statutes may not be extended by construction to cases not clearly within the language employed.

[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 322, 323; Dec. Dig. § 241.*]

2. Statutes (§ 241*)—Strict Construction of Statutes.

Statutes imposing more severe punishment in cases of second or subsequent offenses do not apply to cases which may, but to cases which must, on a strict construction, come within their language.

[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 322, 323; Dec. Dig. § 241.*]

3. Indictment and Information (§ 114*)— Second and Subsequent Offenses—Prosecutions for Capital Felony—Murder in First Degree.

Code 1887, § 3905 (Code 1904, p. 2072), provides for an addition of five years to the sentence to the penitentiary in cases where it is alleged in the indictment and admitted, or found by the jury, that he had been sentenced before to a like punishment Section 3906 provides for confinement for life where a convict has been twice before sentenced to the penitentiary. Held, that these sections apply solely to cases where accused is indicted and prosecuted for an offense punishable by confinement in the penitentiary, and not to indictments and prosecutions for capital felonies, as for murder of the first degree, though in such cases the jury may, in their discretion, find accused guilty of a lesser offense; accused thus being spared the injustice of having evidence of prior offenses introduced before the jury, which the statute only intended should be done to enhance the punishment of a lesser offense, and a miscarriage of justice, in the event that he should be found guilty of a lesser offense, being prevented by sections 4180 to 4183 (Code 1904, pp. 2181, 2182), which provide for the additional punishment whether or not it is alleged in the indictment that he has been before sentenced to a like punishment.

[Ed. Note.—For other cases, see Indictment and Information, Dec. Dig. § 114.*]

4. Indictment and Information (§ 119*)— Indictment for Murder in First Degree —Effect of Alleging Previous Convictions.

An indictment for murder of the first degree is not vitiated by allegations of previous convictions, which must be treated as surplusage.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 311-314; Dec. Dig. § 119.*]

5. Homicide (§ 215*) — Evidence — Dying Declarations.

A dying declaration, that deceased did not know of any motive for shooting him, except that accused was angry because he had refused to rent him land, was admissible.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 456; Dec. Dig. § 215.*]

6. Homicide (§ 220*) — Evidence — Dying Declarations—Conclusiveness.

Such declaration was not conclusive evidence of the fact alleged, and it was competent for the accused to contradict it, by showing that he was not informed of the purpose of deceas ed with respect to the land till after the homicide had been committed.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 461; Dec. Dig. § 220.*]

7. Homicide (§ 174*) — Evidence — Admissibility—Remarks of Accused in Jail.

In a prosecution for murder, the court did not err in admitting testimony as to remarks of accused, while in jail, that he did not begrudge what he had done, and that he had it to do, and if it were to do over again he would do it, though he did not say what he had done, or mention the name of deceased.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 367, 368; Dec. Dig. § 174.*]

8. Criminal Law (§ 822*)—Trial—Consideration of Instructions as a Whole.

No error can be predicated on instructions, which, when read together, fully and fairly state the law of the case.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1990; Dec. Dig. § 822.*]

Keith, P., and Cardwell, J., dissenting.

Error to Circuit Court, Dickenson County. Elijah Wright was convicted of murder, and he brings error. Reversed.

The instructions given referred to in the opinion are as follows:

"No. 1. The court instructs the jury that murder Is the unlawful killing of any person with malice aforethought.

"No. 2. Murder is distinguished by the law of Virginia, as murder in the first degree and as murder in the second degree.

"No. 3. The court instructs the jury that, whenever a killing is willful, deliberate, and premeditated, the law infers malice from this fact.

"No. 4. The court instructs the jury that murder in the first degree is any willful, deliberate, and premeditated killing with malice aforethought.

"No. 5. The court instructs the jury that to constitute a willful, deliberate, and premeditated killing it is not necessary that the intention to kill should exist for any particular length of time before the killing. It Is only necessary that such intention should come into existence for the first time at the time of the killing, or at any time previous.

"No. 6. The court instructs the jury that the rule of law is that a man shall be taken to intend that which he does, or which is the necessary consequence of his act.

"No. 7. The court instructs the jury that on a trial for murder the law of self-defense is the law of necessity, and the necessity relied on to justify the killing must not arise out of the prisoner's own misconduct, and that the prisoner cannot justify the killing of the deceased by a plea of necessity upon himself.

"No. 8. The court instructs the jury that if they believe from the evidence beyond a reasonable doubt that Elijah Wright willfully, deliberately, maliciously, and premedi-tatedly shot and killed William Sifers, he isguilty of murder in the first degree, and the jury should so find.

"No. 9. The court instructs the jury that as a matter of law, in considering the case, the jury are not to go beyond the evidence to hunt up doubts; nor must they entertain such doubts as are merely imaginary. A doubt, to justify an acquittal, must be a reasonable doubt, and it must arise from a candid and impartial investigation of all the evidence in the ease. If, after considering all the evidence, you can say that you have an abiding conviction of the truth of the charge, then you are satisfied beyond a reasonable doubt.

"No. 10. The court further instructs the jury that if they believe from the evidence in this case beyond a reasonable doubt that the defendant, Elijah Wright, said in the hearing of William Sifers that 'Bill Sifers has been trying to agg up a racket all day, ' and that the said William Sifers said to him that 'You are a liar, ' and that the said defendant replied that 'You are another, ' and immediately began to advance on the deceased with a knife in his hand, and that the deceased told him to stop, and shot in the ground near the defendant for the purpose of preventing the defendant from making an assault upon him with said knife, and that the said defendant thereupon forcibly disarmed the deceased, and after he had so disarmed him then and there willfully, maliciously, deliberately, and premeditatedly shot and killed the said William Sifers as is charged in the indictment, he is guilty of murder in the first degree, and the jury should so find."

"No. 12. The court further instructs the jury that murder is the killing of any person with malice aforethought either express or implied. Malice in this definition is used in a technical sense, and includes not only anger, hatred, and revenge, but every unlawful and unjustifiable motive. It is not confined to ill will to any one or more individual persons, but is intended to denote an action flowing from any wicked or corrupt motive and thing done with an evil mind and purpose and wrongful intention, where the act has been attended with such circumstances as to carry in them the plain indication of a heart regardless of social duty and fatally bent on mischief, and therefore malice is implied from any deliberate or cruel act against another, however sudden.

"No. 13. The court tells the jury that dying declarations, when deliberately made under the solemn sense of impending dissolution, and concerning circumstances in respect of which the deceased was not likely to have been mistaken, are entitled to as great weight, if precisely identified, as if the deceased had been living and sworn in court and had testified the same as said dying declaration.

"No. 14. The court tells the jury that they are the exclusive judges of the credibility of the witnesses, and the weight to be given their testimony, but that they have no right to arbitrarily disregard the testimony of any witness; but in determining the credibility of witnesses, and the weight to be given their testimony, the jury must take into consideration the interest of the witness in the thing about which he testifies, his means of knowledge, bias, and prejudice in regard to the thing, about which he testifies and his demeanor while testifying. And, when the jury have considered the testimony of witnesses according to these principles, they should give to the testimony of each witness all the weight to which his testimony is entitled, if any."

Dotson & Bond, for plaintiff in error.

The Attorney General, for the Commonwealth.

WHITTLE, J. This writ of error brings under review a judgment of the circuit court of Dickenson county of conviction of the plaintiff in error, Elijah Wright, of murder of the first degree.

In addition to the charge of murder of the first degree, the indictment alleges that the accused had been twice before sentenced in the United States to confinement in the penitentiary.

There was a demurrer to the indictment, which the court overruled; so that we are met at the threshold of the case with the inquiry whether, in a prosecution for murder of the first degree, the allegation of previous convictions for felony is permissible under sections 3905 and 3906 of the Code of 1887 (Code 1904, p. 2072).

Section 3905 is in...